Opinion
Argued December 7th, 1870
Decided January 24th, 1871
Marshall S. Bidwell, for the appellants.
Andrew Boardman, for the respondents.
The instrument sued upon contains, among other stipulations, an undertaking on the part of the defendants, that, in consideration of one dollar, and of the agreement of the plaintiffs not to arrest or imprison Samuel M. and Mark Levy in any action brought or to be brought against them for certain debts, the said Levys will obey and perform the orders and judgments of the court or courts in which any such action may be pending, and of the judges or justices thereof.
It is averred in the complaint that judgments have been recovered in such actions for, and directing the payment by said Levys to the plaintiffs of various sums.
The defendants demur to the complaint, and claim that their agreement imports no undertaking that the Levys shall pay their judgments.
The undertaking is, that they shall obey and perform the orders and judgments. The actions referred to were actions for debts. The only mode of obeying and performing a judgment in such an action for the recovery of money is to pay it. Such judgments are declared by the Code to be judgments requiring and directing the payment of money. (Code, §§ 285, 335.) If the debts were fraudulently contracted, this payment could be enforced by imprisonment of the debtors. The creditors waived that means of coercion in consideration of the undertaking of the defendants.
The condition of an administrator's bond is to "obey" all orders of the surrogate. A bail bond in replevin was conditioned that the defendant would abide the order and judgment of the court; and such bonds oblige the sureties to pay any sum adjudged against the principal. (4 Denio, 551; 2 Duer, 170.) So where a bond was conditioned to perform the decrees of the court, Chief Justice MARSHALL awarded execution against the sureties for the amount adjudged by the decree. (1 Brock. Marsh., 380.)
It cannot be maintained that the words, "obey and perform," are not sufficient to require payment of the judgments.
It is claimed, however, that the other stipulations in the agreement, and the facts appearing in the complaint, show that the object of the agreement was merely to secure the appearance of the Levys in the actions and their attendance on the court, and that the defendants could not have intended to assume so onerous an obligation as that of sureties for the payment, by the Levys, of the judgments which might be recovered against them.
There is certainly much reason to suspect that the agreement as drawn, imposes upon the defendants a greater obligation than was intended to be assumed. But this suspicion arises from the want of disclosure of an adequate motive for the assumption of so onerous a liability, and from the form of the agreement, which includes this important stipulation in a clause embracing others of minor importance, without giving it that prominence which it would be likely to have, if it were fully understood between the parties, rather than from any ambiguity in the stipulation itself, or any qualification of it by the other items of the agreement.
These considerations, though not proper in construing the legal import of the language, would be exceedingly important in an action brought by the defendants to reform the instrument, or upon the trial of this action, in case the defendants, as they have a right to do, should by answer claim such reformation as equitable relief. Indeed, if on the trial of such an issue, the actual understanding and agreement of the parties should be shown by parol evidence, and the agreements as thus proved should not disclose any understanding that the defendants should assume the liability of paying the judgments, that proof in connection with the peculiarity in the form of the agreement would justify a finding, that the words "perform the judgment" were inadvertently or improperly inserted by the draftsman, and that the writing was signed under a misapprehension of its contents, and did not contain the real agreement of the parties. But supposing it should appear on such a trial, that the obligation was intended to be to the extent now claimed, or that the defendants were indemnified against such obligation, or any other decisive fact, should indicate that such liability was contemplated, could it be contended that the words used were insufficient to constitute an agreement in writing within the statute of frauds? Yet we must go to that extent to enable us to hold on a demurrer, that the language of the agreement does not import the obligation claimed by the plaintiff to result from it.
The judgment should be reversed, and the demurrer overruled with leave to the defendants to answer within thirty days, on payment of costs of the demurrer and of the appeals.
All the judges concurring, except CHURCH, Ch. J., who dissented, and ANDREWS, J., absent.
Judgment reversed and demurrer overruled, with leave to the defendants to answer upon the terms stated in RAPALLO, J.'s, opinion.